News Analysis: How Activist Is the Supreme Court?

WASHINGTON — JUSTICES Antonin Scalia and Ruth Bader Ginsburg are ideological antagonists on the Supreme Court, but they agree on one thing. Their court is guilty of judicial activism.

"If it's measured in terms of readiness to overturn legislation, this is one of the most activist courts in history," Justice Ginsburg said in August in an interview with The New York Times. "This court has overturned more legislation, I think, than any other."

But Justice Ginsburg overstated her case. If judicial activism is defined as the tendency to strike down laws, the court led by Chief Justice John G. Roberts Jr. is less activist than any court in the last 60 years.

Nonetheless, Justice Ginsburg's impression fits with a popular perception of the court. In 2010 in Citizens United, it struck down part of a federal law regulating campaign spending by corporations and unions, overruling two precedents in the bargain. In June, it struck down parts of the Voting Rights Act and the Defense of Marriage Act.

The court will no doubt be accused of yet more activism if it continues to dismantle campaign finance restrictions, as it seemed ready to do Tuesday at arguments in a case about limits on campaign contributions from individuals.

But these decisions are outliers when measured against the court's overall record over the last nine years.

It is perhaps unsurprising that the liberal court led by Chief Justice Earl Warren from 1953 to 1969 invalidated federal, state and local laws at almost twice the rate of the Roberts court. But the more conservative court that followed, led by Chief Justice Warren E. Burger from 1969 to 1986, was even more activist, striking down laws in almost 9 percent of its cases, compared with just over 7 percent in the Warren court and just 4 percent in the Roberts court. The court led by Chief Justice William H. Rehnquist from 1986 to 2005 was also more activist than the current one, at 6.4 percent.

Lee Epstein, who teaches law and political science at the University of Southern California, cautioned that it was dangerous to draw definitive conclusions from a fairly small number of decisions from the Roberts court. Still, she said, "claims about the Roberts court's activism seem overwrought."

Indeed, there is a new school of criticism — one that includes some voices from the right, where judicial restraint was once part of conservative legal orthodoxy — that says the Supreme Court is not activist enough.

In a recent essay, "Why We Need More Judicial Activism," Suzanna Sherry, a law professor at Vanderbilt University, said the Supreme Court had erred more often in sustaining laws than in striking them down. "Too much of a good thing can be bad," she wrote, "and democracy is no exception."

In a new book, "Terms of Engagement," Clark M. Neily III of the Institute for Justice, a libertarian group, calculated that the Supreme Court struck down just 103 of the 15,817 laws enacted by Congress in the half-century ending in 2002. "It is implausible," he wrote, "to suppose the federal government hits the constitutional strike zone 99.5 percent of the time."

Mr. Neily urged the Supreme Court to be more active but rejected the phrase "judicial activism."

"It's inherently pejorative," he said, favoring instead a new term: "judicial engagement."

The federal appeals court in Atlanta adopted that nomenclature in 2011 in striking down the heart of President Obama's health care law, saying, "the Constitution requires judicial engagement, not judicial abdication."

After the Supreme Court argument in the case in the spring of 2012, with things looking grim for the fate of his law, Mr. Obama tried to shift the terms of the discussion back to activism. "I'd just remind conservative commentators," he said, "that for years what we've heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law."

Three months after Mr. Obama's remarks, Chief Justice Roberts broke with his usual conservative allies and voted with the court's four liberals to uphold the law. In a joint dissent, the four conservatives said the majority was wrong to portray its ruling as "judicial modesty" when "it amounts instead to a vast judicial overreaching."

Writing in Public Discourse last year, Joel Alicea, then a law student at Harvard University, said "the clash between the chief justice's opinion and that of the joint dissenters" is "a clash between two visions of judicial restraint, and two eras of the conservative legal movement."

Justice Scalia said last month that he used another definition "when I complain about the activism of my court." His colleagues were activist, he said at George Washington University, when they identified rights, like one to abortion, that were not in the text of the Constitution.

The Roberts court may not be especially activist in the classic sense of striking down a lot of laws. But there does appear to be an element of politics in its rulings.

"In a nutshell, liberal justices tend to invalidate conservative laws and conservative justices, liberal laws," Professor Epstein and Andrew D. Martin of Washington University in St. Louis wrote last year in The Emory Law Journal in a look at the Roberts court's first five terms.

Only Justice Anthony M. Kennedy, the justice at the court's ideological center, is a puzzle. In remarks this month at the University of Pennsylvania, he said his court should play only a modest role. "Any society that relies on nine unelected judges to resolve the most serious issues of the day is not a functioning democracy," he said.

Yet Justice Kennedy "is the most aggressive of the Roberts justices," voting with the majority 94 percent of the time when the court struck down a law, Professors Epstein and Martin found. "Unlike the other Roberts justices," they added, "no underlying ideological pattern seems to exist to Kennedy's votes."

Justice Ginsburg said there was a theory behind her votes to strike down some laws and not others. In general, she said, "we trust the democratic process, so the court is highly deferential to what Congress does."

But some laws, she went on, require special scrutiny. Citing a famous footnote in a 1938 Supreme Court decision, United States v. Carolene Products, she said courts must be more vigilant when fundamental rights are at stake, when the political process has been frustrated or when disfavored minorities are singled out for mistreatment.

That explains, she said, why she was in dissent in the 5-4 decision in June to strike down part of the Voting Rights Act, a decision she called "stunning in terms of activism." That law, she said, meant to protect black voters.

She was in the majority the next day in a 5-4 decision striking down the Defense of Marriage Act, which denied federal benefits to married same-sex couples. That law, she said, singled out gays and lesbians for discrimination.

Mr. Neily, in common with few people except Justice Kennedy, the sole justice in both majorities, said he found both decisions defensible.

"Both represent applications of judicial engagement," he said. "Judicial engagement doesn't call for a particular result. It calls for a particular approach to judging."